MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.25 OF 2002 In the matter of an Appeal under section-378(1)&(3) of the Code of Criminal Procedure, 1973 and from the judgment of acquittal dated 16th February 2002 passed by the learned Assistant Sessions Judge, Sonepur in Sessions Case No.64(S)/39 of 1999. State of Orissa ---- -versus- …. Appellant Laxmi Charan Panda & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ====================================================== For Appellant - Mr. S.K. Nayak, Additional Govt. Advocate.
Legal Reasoning
evidence in arriving at a such conclusion. Therefore, we find that the conclusions of the Trial Court do not suffers from the vice of perversity so as to warrant interference in this Appeal. 10.
Arguments
For Respondents - Mr. D.P. Dhal, Sr. Advocate. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING:04.07.2024 :DATE OF JUDGMENT: 20.08.2024 D.Dash,J. The State, having filed this Appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 has called in question the judgment of acquittal dated 16th February 2002 passed by the learned Assistant Sessions Judge, Sonepur acquitting these Respondents-accused persons of the charge under section 376 of Page 1 of 8 GCRLA NO. 25 OF 2002 the Indian Penal Code, 1860 (for short hereinafter called as ‘the IPC’) in the trial that they faced in Sessions Case No.64(S)/39 of 1999 arising out of G.R. Case No.67 of 1999 standing charged for the said offence. In this Appeal prayer before this Court is for interference with the acquittal of the Respondents (accused persons) in seeking their conviction for the above offences and consequential imposition of the sentence. 2. Prosecution case is that accused-Laxmi Chandra Panda as committed rape upon the victim (P.W.2) during the period in between December, 1998 to March 1999. It is alleged that accused- Laxmi along with other accused-Sachidananda has acted in furtherance of their common intention from 03.03.1999 to 09.03.1999 in voluntarily causing miscarriage/abortion of the child, which the victim was having in her womb. Information has been lodged by the father of the victim, Ext.1 that the accused-Laxmi being a married man was having illicit relationship with the victim (P.W.2) and made her pregnant. It is further stated that on 03.03.1999, accused-Laxmi in connivance with the other accused Sachidananda taking the help of one Kabiraj having administered some injection upon the victim (P.W.2) of the village caused said miscarriage/ abortion. GCRLA NO. 25 OF 2002 Page 2 of 8 This F.I.R. (Ext.1) has been lodged after six(6) days of said miscarriage / abortion and the explanation given is that since talk of compromise was going on in the village that the accused- Laxmi would marry the victim (P.W.2), information in writing at the Police station could not be given earlier. On completion of investigation this accused-Laxmi was asked to face the trial for commission of offence under section-376 of the IPC and the accused-Laxmi with accused Sachidananda were asked to be placed for Trial for commission of offence under section-312/34 of the IPC. Accordingly, they being charged for the said offence and faced the Trial. 3. In the Trial, the prosecution has examined in total fourteen (14) witnesses; whereas, the defence has examined none. That apart, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 15. Out of them, the star witness is victim (P.W.2). 4. The Trial Court having examined the evidence on record and upon their analysis from different angles has final concluded that the prosecution has failed to establish the charges against both the accused persons and basing upon that finding, the accused persons have been acquitted, which is under challenge before this Court. GCRLA NO. 25 OF 2002 Page 3 of 8 5. Learned Counsel for the State submitted that the appreciation of evidence made by the Trial Court is wholly perverse and thus the outcome that the prosecution has failed to establish the charges under section-376/312 of the IPC against the accused persons beyond reasonable doubt cannot be sustained. In this connection, he has invited the attention of this Court to the deposition of the victim (P.W.2) side by side, the discussion of the evidence of victim (P.W.2) as has been made by the Trial Court in its judgment. He submitted that when victim (P.W.2) has clearly stated that she has not voluntarily surrendered for the sexual intercourse with the accused-Laxmi, and it was against her consent and not of her free will but taken based on some promise, with that accused. The Trial Corut ought to have held guilty of commission of offence under section-376 of the IPC. He further submitted that when miscarriage / abortion has been done against the consent of the victim (P.W.2), both the accused persons ought to have been held guilty for the commission of offence under section-312/34 of the IPC. Therefore, the Trial Court having committed grave error in acquitting the accused persons, according to him, the finding of acquittal warrants interference. 6. Learned Counsel for the Respondents-accused persons submitted all in favour of the findings returned by the Trial Court in saying that those are the outcome of just and proper GCRLA NO. 25 OF 2002 Page 4 of 8 appreciation of evidence and there surfaces no such perversity so as to term the conclusions as perverse. He also invited the attention of this Court to deposition of the victim (P.W.2) and other witnesses and side by side discussion made by the Trial Court in the said evidence in arriving at the conclusion. 6. Keeping in view the submissions made; we have carefully read the impugned judgment. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.14 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 15. 7. This being an Appeal against the order of acquittal, as per the settled position of law, the interference with the order of acquittal is called for when there are compelling and substantial reasons for doing so. The Court for the purpose has to ascertain that the judgment impugned is unreasonable and that relevant convincing materials have been unjustifiably eliminated in the process. However, when the findings recorded by the Trial Court are not perverse and contrary to the materials on record and there stands no infirmity in the reasons assigned by the Trial Court for acquitting the accused, no interference is warranted. It is now well settled by a catena of decisions of Apex Court that in an Appeal against acquittal, the following cardinal rules are required to be kept in mind which are:- GCRLA NO. 25 OF 2002 Page 5 of 8 (a) that the presumption of innocence in favour of the accused stands strengthened by the acquittal of the accused in the Trial; (b) if two views are possible, a view favourable to the accused should be taken; (c) that the Trial Judge had the advantage of the looking at the demeanour of the witnesses; and (d) the accused is entitled to reasonable benefit of doubt, a doubt which a thinking man will reasonably, honestly and consciously entertain. 8. Now coming to the evidence on record and find out if the finding of the Trial Court is suffering from the vice of perversity, it is felt apposite to examine the evidence of victim (P.W.2) first. She has stated that the accused forcefully took her to his house on one day and told her that she would be as his wife and gave a lot of assurance to spend happy life. Then it is said that the accused went on having sexual relationship with her for quite some time till she was pregnant; whereafter, this accused-Laxmi with other accused Sachidananda caused the miscarriage/ abortion. The Trial Court rightly has first of all proceeded to find out from the evidence as to the age of the victim (P.W.2) at the relevant time. It appears that upon detail discussion that the evidence both oral and documentary on record and embarking upon critical analysis of the same from every possible angle, the Trial Court has arrived at a conclusion that the prosecution has GCRLA NO. 25 OF 2002 Page 6 of 8 failed to prove the age of the victim (P.W.2) to be below 16 years as the relevant time. The discussion of evidence as has been made by the Trial Court in the judgment, is no way found to be erroneous. Being in able to reconcile the oral and documentary evidence, the Trial Court has raised doubt over the prosecution case that the victim was then below 16 years of age at the relevant time. We having gone through such evidence serious doubt to be arising in our mind to accept the prosecution version that the victim (P.W.2) was below 16 years of age at the relevant time. 9. Having found as above, when we approach the evidence of victim (P.W.2), we find that she first of all has stated to have forcefully taken by the accused-Laxmi to his house but then about such force being applied upon victim (P.W.2) in taking her to the house of the accused-Laxmi, she has not disclosed the same before any one for a long time till her miscarriage/abortion as the case may be. When it is said that the accused was a married man who was living with his family, the evidence of the victim (P.W.2) is silent as to on that day whether others were present in the house or not. As it appears after that, after first establishment of sexual relationship, the same has continued for quite few days thereafter. But then the victim has not disclosed about that to anybody, nor she stated that the accused having given the promise did not fulfill. All these circumstances emanating from GCRLA NO. 25 OF 2002 Page 7 of 8 the evidence of victim (P.W.2) having been discussed in great details, the Trial Court appears to have rightly arrived at the conclusion that such sexual relationship between victim (P.W.2). and the accused-Laxmi was not against the consent and will of the victim (P.W.2). The Trial Court after analysis of the evidence has also not been in a position to conclude that the consent of the victim was obtained by misrepresentation. The evidence of P.W.2 being read as a whole; we find no such material to hold that the victim’s consent had been snatched away by any false promise. We find that the Trial Corut in arriving at the conclusion has neither overlooked any such material evidence from being taking into consideration nor to have read anything extraneous into the
Decision
In the result, the Appeal stands dismissed. V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Narayan Location: OHC Date: 22-Aug-2024 18:46:43 GCRLA NO. 25 OF 2002 (D. Dash), Judge. (V. Narasingh), Judge. Page 8 of 8